The short answer, “very possibly,” often surprises our clients, whether they are employers or employees.

 

     The Fair Labor Standards Act (“FLSA”), with some qualifications, begins with the assumption every employee who works more than 40 hours in a workweek is entitled to overtime. Most employees – salaried or not – are entitled to overtime if they work more than 40 hours per week. The law then sets forth a number of jobs whose duties make them exempt from the overtime requirement. If the job duties fall within an exempt category, the employee is probably not entitled to overtime (subject to the comments below). While by no means an exhaustive list, some of the common exempt jobs are administrative employees, executives, professionals, outside salespersons, computer professionals (earning above a certain amount), movie theater employees and employees delivering newspapers.

 

     Again, however, just because an employee has the job title, “Administrative Assistant,” for instance, does not mean under the FLSA the employee is exempt. Exemption depends on the employee’s actual job duties. Employers often erroneously assume an exemption applies because the employee has one or two responsibilities that fit into a particular category.

 

     Even if job duties would exempt an employee from overtime, the employee may be owed overtime if the employer fails to treat him or her as a true salaried employee. For example, if employees’ salaries are docked if they are late to work or miss a few hours here or there, the exemption may be lost.

 

     This rule, too, however, is subject to some exceptions. For instance, an employer need not pay the employee for any week in which he or she performs no work, and deductions from pay may be made when the employee is absent from work for one or more full days for personal reasons. There are other exceptions as well.

 

     Employers can wind up with substantial liability for unpaid overtime -- for one or dozens of employees -- because they are overbroad in their classifications of employees, or they incorrectly dock exempt employees for time off. If you wonder whether you are obligated to pay overtime, you should contact an attorney to evaluate your employees’ job duties, your compensation system, and whether your current system complies with the FLSA.